Title 30 TAC 116.150 - 175, March 21, 1999

Synopsis of specific rules from air permitting that were in effect on this date.

Subchapter B New Source Review Permits

NONATTAINMENT REVIEW § 116.150 New Major Source or Major
Modification in Ozone Nonattainment Areas§ 116.151 New Major Source or Major
Modification in Nonattainment Areas Other than Ozone

PREVENTION OF SIGNIFICANT DETERIORATION REVIEW§ 116.160 Prevention of Significant
Deterioration Requirements§ 116.161 Source Located in an Attainment
Area with a Greater than De Minimis Impact§ 116.162 Evaluation of Air Quality
Impacts§ 116.163 Prevention of Significant
Deterioration Permit Fees

116.150 New Major Source or
Major Modification in Ozone Nonattainment Areas

(a) This section applies to administratively complete
applications submitted on or after November 15, 1992 for new
construction or modification of facilities located in any area
designated as nonattainment for ozone in accordance with the FCAA,
.107. The owner or operator of a proposed new or modified facility
which will be a new major stationary source of volatile organic
compound (VOC) emissions or nitrogen oxides (NOx) emissions, or the
owner or operator of an existing major stationary source of VOC or
NOx emissions that will undergo a major modification with respect
to VOC or Nox, shall meet the requirements of paragraphs (1) - (4)
of this subsection, except as provided in subsections (b) and (c)
of this section. Table I of § 116.12 of this title (relating
to Nonattainment Review Definitions) specifies the various
classifications of nonattainment along with the associated emission
levels which designate a major stationary source or major
modification for those classifications. Except as noted in
subsection (b) of this section regarding NOx , the de minimis
threshold test (netting) shall be required for all modifications to
existing major sources of VOC or NOx, unless at least one of the
following conditions are met: the proposed emissions increases
associated with a project, without regard to decreases, is less
than five tons per year of the individual nonattainment pollutant
or, the project emissions increases coupled with project actual
emissions decreases for the same pollutant, summed as the project
net, are less than or equal to zero tons per year. In applying the
de minimis threshold test, if the net emissions increases,
aggregated over the contemporaneous period, are greater than the
major modification levels stated in Table I, then the following
requirements apply.

(1) The proposed facility shall comply with the lowest
achievable emission rate (LAER) as defined in § 116.12 of this
title for the nonattainment pollutants for which the facility is a
new major source or major modification except as provided in
paragraph (3)(B) of this subsection and except for existing major
stationary sources that have a potential to emit (PTE) of less than
100 tons per year of the applicable nonattainment pollutant. For
these sources, Best Available Control Technology (BACT) can be
substituted for LAER. LAER shall otherwise be applied to each new
emission unit and to each existing emission unit at which the net
emissions increase will occur as a result of a physical change or
change in method of operation of the unit.

(2) All major stationary sources owned or operated by the
applicant (or by any person controlling, controlled by, or under
common control with the applicant) in the state shall be in
compliance or on a schedule for compliance with all applicable
state and federal emission limitations and standards.

(3) At the time the new or modified facility or facilities
commence operation, the emissions increases from the new or
modified facility or facilities shall be offset. The proposed
facility shall use the offset ratio for the appropriate
nonattainment classification as defined in § 116.12 of this
title and shown in Table I of § 116.12 of this title. Internal
offsets which are generated at the source and which otherwise meet
all creditability criteria can be applied as follows.

(A) Major stationary sources with a PTE of less than 100 tons
per year of an applicable nonattainment pollutant are not required
to undergo Nonattainment New Source Review under this section, if
the project increases are offset with internal offsets at a ratio
of at least 1.3 to 1.

(B) Major stationary sources with a PTE of greater than or equal
to 100 tons per year of an applicable nonattainment pollutant can
substitute BACT for LAER, if the project increases are offset with
internal offsets at a ratio of at least 1.3 to 1. Internal offsets
used in this manner can also be applied to satisfy the offset
requirement.

(4) In accordance with the FCAA, the permit application shall
contain an analysis of alternative sites, sizes, production
processes, and control techniques for the proposed source. The
analysis shall demonstrate that the benefits of the proposed
location and source configuration significantly outweigh the
environmental and social costs of that location.

(b) For sources located in the El Paso ozone nonattainment area
(El Paso County), the requirements of this section do not apply to
NOx emissions.

(c) For sources located in the Houston/Galveston (HGA) ozone
nonattainment area (Brazoria, Chambers, Fort Bend, Galveston,
Harris, Liberty, Montgomery, and Waller counties) or the
Beaumont/Port Arthur (BPA) ozone nonattainment area (Hardin,
Jefferson, and Orange counties), the following shall apply to NOx
emissions.

(1) For permit applications in review after April 12, 1995, and
declared administratively complete on or before December 31,
1997:

(A) Subsection (a)(1), (2), and (4) of this section do not
apply.

(B) The requirements of subsection (a)(3) of this section apply
and shall be made a part of the source's permit. However, the
requirements shall be held in abeyance for a period ending no
sooner than January 1, 1998. The Texas Natural Resource
Conservation Commission (commission) may, on or after January 1,
1998, and after making the determinations described in paragraph
(2) of this subsection, require the source to implement the permit
requirements imposed pursuant to the requirements of subsection
(a)(3) of this section. If the commission requires implementation,
the source shall obtain the NOx offsets as specified in subsection
(a)(3) of this section no later than January 1, 2000.

(C) Documentation of proposed increases of NOx equal to or
greater than 40 tons per year, as well as documentation of netting
calculations for these increases, shall be submitted.

(D) A source otherwise subject to the requirements of subsection
(a)(1)-(4) of this section may, at its option, comply with any of
those requirements.

(2) The commission has reviewed the results of the Urban Airshed
Model for the HGA and BPA ozone nonattainment areas, using data
from the Coastal Oxidant Assessment for Southeast Texas study, in
accordance with the United States Environmental Protection Agency
document "Guideline for Determining the Applicability of Nitrogen
Oxides Requirements under Section 182(f)" (December 1993). The
commission has determined that additional NOx reductions in the HGA
and BPA nonattainment areas will contribute to attainment of the
National Ambient Air Quality Standards for ozone. The commission
will notify sources which have permit requirements in abeyance
pursuant to paragraph (1)(B) of this subsection, that the period of
abeyance has ended. The source shall obtain the NOx offsets as
specified in subsection (a)(3) of this section no later than
January 1, 2000.

116.151 New Major Source or
Major Modification in Nonattainment Area Other Than
Ozone

This section applies to administratively complete applications
submitted on or after November 15, 1992, for new construction or
modification of facilities located in a designated nonattainment
area for an air contaminant other than ozone. The owner or operator
of a proposed new or modified facility which will be a new major
stationary source for that nonattainment air contaminant, or the
owner or operator of an existing major stationary source that will
undergo a major modification with respect to that nonattainment air
contaminant, shall meet the additional requirements of paragraphs
(1)-(4) of this section. Table I of § 116.12 of this title
(relating to Nonattainment Review Definitions) specifies the
various classifications of nonattainment along with the associated
emission levels which designate a major stationary source or major
modification for those classifications.

(1) The proposed facility shall comply with the lowest
achievable emission rate (LAER) as defined in § 116.12 of this
title for the nonattainment pollutants for which the facility is a
new major source or major modification. LAER shall be applied to
each new emission unit and to each existing emission unit at which
the net emissions increase will occur as a result of a physical
change or change in method of operation of the unit.

(2) All major stationary sources owned or operated by the
applicant (or by any person controlling, controlled by, or under
common control with the applicant) in the state shall be in
compliance or on a schedule for compliance with all applicable
state and federal emission limits and standards.

(3) At the time the new or modified facility or facilities
commence operation, the emission increases from the new or modified
facility or facilities shall be offset. The proposed facility shall
use the offset ratio for the appropriate nonattainment
classification as defined in § 116.12 of this title and shown
in Table I of § 116.12 of this title.

(4) In accordance with the Federal Clean Air Act, the permit
application shall contain an analysis of alternative sites, sizes,
production processes, and control techniques for the proposed
source. The analysis shall demonstrate that the benefits of the
proposed location and source configuration significantly outweigh
the environmental and social costs of that location.

116.160 Prevention of
Significant Deterioration Requirements

(a) Each proposed new major source or major modification in an
attainment or unclassifiable area shall comply with the Prevention
of Significant Deterioration (PSD) of Air Quality regulations
promulgated by the EPA in Title 40 Code of Federal Regulations
(CFR) at 40 CFR 52.21 as amended June 3, 1993 (effective June 3,
1994) and the Definitions for Protection of Visibility promulgated
at 40 CFR 51.301, hereby incorporated by reference.

(b) The following paragraphs are excluded:

(1) 40 CFR 52.21(j), concerning control technology review;

(2) 40 CFR 52.21(l), concerning air quality models;

(3) 40 CFR 52.21(q), concerning public notification (provided,
however, that a determination to issue or not issue a permit shall
be made within one year after receipt of a complete permit
application so long as a contested case hearing has not been called
on the application);

(d) All estimates of ambient concentrations required under this
subsection shall be based on the applicable air quality models and
modeling procedures specified in the EPA Guideline on Air Quality
Models, as amended, or models and modeling procedures currently
approved by the EPA for use in the state program, and other
specific provisions made in the PSD state implementation plan. If
the air quality impact model approved by EPA or specified in the
guideline is inappropriate, the model may be modified or another
model substituted on a case-by-case basis, or a generic basis for
the state program, where appropriate. Such a change shall be
subject to notice and opportunity for public hearing and written
approval of the administrator of the EPA.

116.161 Source Located in an
Attainment Area with a Greater Than De Minimis Impact

The commission may not issue a permit to any new major
stationary source or major modification located in an area
designated as attainment or unclassifiable, for any National
Ambient Air Quality Standard (NAAQS) under FCAA, § 107, if
ambient air impacts from the proposed source would cause or
contribute to a violation of any NAAQS. In order to obtain a
permit, the source must reduce the impact of its emissions upon air
quality by obtaining sufficient emission reductions to eliminate
the predicted exceedances of the NAAQS. A major source or major
modification will be considered to cause or contribute to a
violation of a NAAQS when the emissions from such source or
modification would, at a minimum, exceed the de minimis impact
levels specified in § 101.1 of this title (relating to
Definitions) at any locality that is designated as nonattainment or
is predicted to be nonattainment for the applicable standard.

116.162 Evaluation of Air
Quality Impacts

In evaluating air quality impacts under § 116.160 of this
title (relating to Prevention of Significant Deterioration
Requirements) or § 116.161 of this title (relating to Sources
Located in an Attainment Area with a Greater Than De Minimis
Impact), the owner or operator of a proposed new facility or
modification of an existing facility shall not take credit for
reductions in impact due to dispersion techniques as defined in
Title 40 Code of Federal Regulations (CFR). The relevant federal
regulations are incorporated herein by reference, as follows:

(a) If the estimated capital cost of the project is less than
$300,000 or if the project consists of new facilities controlled
and operated directly by the federal government for which an
application is submitted after January 1, 1987, and the federal
regulations for Prevention of Significant Deterioration (PSD) of
Air Quality are applicable, the fee is $1,500.

(b) If the estimated capital cost of the project is $300,000 or
more and the PSD regulations are applicable, the fee is 0.5% of the
estimated capital cost of the project. The maximum fee is
$75,000.

(c) Whenever a permit application is submitted under PSD
requirements, there shall be no additional fee for the state new
source review permit application.

(d) Certification of the estimated capital cost of the project
shall be provided in accordance with § 116.141(c) and (d) of
this title (relating to Determination of Fees).

(e) A fee of $75,000 shall be required if no estimate of capital
project cost is included with a permit application.

116.170 Applicability for
Reduction Credits

At the time of application for a permit in accordance with this
chapter, any applicant who has effected air contaminant emission
reductions may also apply to the executive director to use such
emission reductions to offset emissions expected from the facility
for which the permit is sought, provided that the following
conditions are met.

(1) The emission reductions are not required by any provision of
the Texas State Implementation Plan as promulgated by the EPA in 40
Code of Federal Regulations, Part 52, Subpart SS, nor by any other
federal regulation under the FCAA, as amended, such as New Source
Performance Standards. Minimum offset ratios as specified in Table
I of § 116.12 of this title (relating to Nonattainment Review
Definitions) shall be used in areas designated as nonattainment
areas.

(2) The applicant furnished documentation at the time of his
permit application to substantiate his claim of emission reductions
previously effected. The following information must be included in
the documentation:

(A) location and identity of the source(s) where emissions are
reduced;

(B) chemical composition of emissions reduced;

(C) date(s) when emission reductions occurred;

(D) amount of emission reductions expressed in rates of tons per
year and in pounds per hour;

(E) a complete description of the reduction method (i.e., source
shut-down, process or operational change, type of control device,
etc.);

(F) a certification by the applicant that the emission
reductions have in fact been achieved and that the same reductions
have not been used previously and will not be used subsequently to
offset another source; and

(G) any other pertinent detailed descriptive information that
may be requested by the executive director.

(3) Emissions increases from rocket engine and motor firing, and
cleaning related to such firing, at an existing or modified major
source, shall be allowed to be offset by alternative or innovative
means, provided the following conditions are met:

(A) any modification proposed is solely for the purpose of
expanding the testing of rocket engines or motors at an existing
source permitted to test such engines as of November 15, 1990;

(B) the source demonstrates to the satisfaction of the
commission that it has used all reasonable means to obtain and
utilize offsets, as determined on an annual basis, for the
emissions increases beyond allowable levels, that all available
offsets are being used, and that sufficient offsets are not
available to the source;

(C) the source has obtained a written finding from the
Department of Defense, Department of Transportation, National
Aeronautics and Space Administration, or other appropriate federal
agency, that the testing of rocket motors or engines at the
facility is required for a program essential to the national
security; and

(D) the source will comply with an alternative measure, imposed
by the commission, designed to offset any emission increases beyond
permitted levels not directly offset by the source. In lieu of
imposing any alternative offset measures, the commission may impose
an emissions fee to be paid which shall be an amount no greater
than 1.5 times the average cost of stationary source control
measures adopted in that area during the previous three years.

116.174 Determination by
Executive Director To Authorize Reduction

The executive director may grant authority to a permit applicant
to use prior emission reductions and emission reductions granted to
the applicant by another entity (either public or private) in
accordance with § 116.170 of this title (relating to
Applicability for Reduction Credits) if the commission determines
that the prior emission reductions have, in fact, occurred and,
when considered with other emission reductions that may be required
by the permit as well as contaminants that will be emitted by the
new source, will result in compliance with § 116.150 of this
title (relating to New Major Source or Major Modification in Ozone
Nonattainment Areas), § 116.151 of this title (relating to New
Major Source or Major Modification in Nonattainment Areas Other
Than Ozone), § 116.160 of this title (relating to Prevention
of Significant Deterioration Requirements), and § 116.162 of
this title (relating to Evaluation of Air Quality Impacts), as
applicable, in the area where the new source is to be located.
Prior as well as future emission reductions to be used as an offset
shall be made conditions for granting authority to construct the
proposed new source and shall be enforced.

116.175
Recordkeeping

The executive director will maintain no records of emission
offset credits claimed by an applicant in accordance with §
116.170 of this title (relating to Applicability for Reduction
Credits) other than those contained in permit application and
permit files. The applicant shall maintain all records necessary to
substantiate claims of emission reductions and shall make such
records available for inspection upon request of the executive
director.